REHEARING REFUSED.

New Zealand Herald, Volume LXVII, Issue 20668, 13 September 1930, Page 14

REHEARING REFUSED.

MAGISTRATE'S DISCRETION.

APPEAL TO SUPREME COURT,

JUDGE DISMISSES MOTION

'J'lio refusal of Mr. F. K. Hunt, S.M., last month to grant a rehearing of a case in the Police Court led. to proceedings being taken in the Supreme Court yesterday, to have (lie refusal vacated or set aside. The plaintiff was Violet Cousins, engaged on domestic duties, and 011 her behalf Mr. Sullivan moved against F. K. limit, S.M., and William Christiansen, police constable, for an order for a writ of certiorari to remove the magistrate's order of refusal into the Supremo Court. Mr. Meredith appeared to opposo the motion.

The plaintiff had been arrested by Constable. Christiansen, and on August 11 was convicted of being idle and disorderly in that she habitually consorted with undesirables. Mr. Sullivan's application for ;j rehearing came up on August 23 and 25. lie now asked for judgment for costs on tho ground that tho magistrate did not hear the application for a rehearing, but predetermined it without exercising his discretion in a judicial manner, and that ho took into consideration matters that were arbitrary, vague or fanciful and contrary to tho principles of justice. On August 23 tho magistrate said ho would adjourn tho application for rehearing until August 25 so that he might havo a report from the probation officer. On August 25 ho said ho had seen tho probation officer, and tho case was a bad one, as the woman had 40 previous convictions. Mr. Sullivan submitted that tho question of previous convictions was not iu issue, and that the application was decided as soon as the magistrate conferred with the probation officer.

"Peremptory " Hefusal

The plaintiff, counsel said, had been sentenced to three months' imprisonment. When on August 25 lie protested that the magistrate) was not hearing the application Mr. Hunt merely peremptorily remarked, "The application is refused." llis Honor: What arc the grounds on which you apply for a rehearing? Mr. Sullivan said the police had not communicated with the accused woman's friend, who would liavo been able to procure witnesses to prove that she had been regularly employed for the previous six months. Instead of deciding the application on its merits tho magistrate conferred with an outside party. Counsel said lie had a reporter and two polico officers present to give evidence. His Honor: Do you dispute the statements made by Mr. Hunt in his affidavit '! Mr. Sullivan: It is not exactly correct with all respect to tho learned' magistrate.

Mr. Meredith said the proceduro of calling evidence on a motion was most unusual. His Honor said it seemed the case was to bo decided on Mr. Sullivan's application, and on nothing else. Mr. Sullivan said tho question was whether the magistrate listened at all to the application.

"Had Fivo Witnesses."

His Honor: There seems to bo abundant evidenco to show that she deserved all she got.

Mr. Sullivan: I liar! fi vc witnesses present whom I could have put forward. llis Honor: What would they prove? That she was living as a housekeeper? How would that help your case? She is charged with consorting. Mr. Meredith said he would waive any technical objection if His Honor was willing to hear oral evidence, and this course was agreed to.

William Edward Crawford, journalist, said he had been reporting in tho Polico Court on Saturday, August 23. When Mr. Sullivan's application came up Mr. Hunt said he would get the probation officer's report, and stood tho matter over until Monday. On Monday Mr. Hunt said ho had got tho report and would refuse the application. Mr. Sullivan protested against this.

His Honor: I don't think there will be any dispute about the fact that you made a protest, Mr. Sullivan, i A similar account of tho proceedings on the Saturday was given bv Senior-Ser-geant Powell, and of the Monday proceedings by Sub-Inspector Slianaghan. Mr. Sullivan quoted legal authority with a view to showing that the magistrate had not exercised his authority properly. Submission by Mr. Meredith.

Mr. Meredith said tho application was based on tho assumption that tho magistrate had allowed himself to ho guided by outside influences. Mr. Sullivan had helped himself to all sorts of inferences flatly contradicted by all (ho affidavits, and obviously ridiculous on the face of them. The magistrate had treated tho application with more courtesy than it deserved in saying that ho would see tho probation officer about it. Mr. Sullivan had made a fairly serious reflection on the competence of the magistrate. Mr. Sullivan protested that ho was not making a reflection on anybody, but merely discharging his duty to his client.

Mr. Meredith said (ho reflection had been mado that Mr. Hunt had failed in his duty to consider an affidavit, but it was impossible to hold that, because Mr. Hunt had had tho courtesy to point out that tho woman was convicted on a charge different from that referred to by Mr. Sullivan in his application. Carrying out his discretion in the ordinary way tho magistrate could liavo como to no other decision than ho did.

In deciding to dismiss Mr, Sullivan's motion, His Honor said ho doubted very much whether the evidence Mr. Sullivan proposed to tender would have beon iclevant to (ho charge. Tbo foundations of tbo application did not discloso any evidence that would justify tbo granting of h rehearing. The granting of a rehearing was in (ho discretion of the magistrate, and llis Honor was not prepared to say that (he magistrate did not in this particular instance properly exercise his discretion.

The motion was therefore dismissed, and Mr. Meredith was granted £5 5s costs.